The
Right to Conscientious Objection in Europe:
A review of the current situation: TURKEY

By
Quaker Council for
European Affairs, 2005

Conscription

Conscription is enshrined in Article 72 of the 1982 Constitution. Its
further legal basis is the Law on Military Service (1111/1982) and Law for
Reserve Officers and Reserve Military Servants (1076).

The
length of military service is 15 months. University graduates may perform
8 months' military service, or 12 months if they are trained to become
reserve officers. Certain professional groups (doctors, teachers, civil
servants) may be permitted to perform special service.

All
men between the ages of 19 and 40 are liable for military service. Men who
have not fulfilled their military service by the age of 40 and who have
not been legally exempt from service, may still be called up after the age
of 40.

Students
may postpone their military service up to the age of 29, or up to the age
of 36 in the case of postgraduate students.

After
completion of military service, reservist duties apply up to the age of
40.

Different
military service regulations apply for Turkish citizens who are living
abroad. They can postpone their service up to the age of 38, for a period
of three years at a time. Turkish citizens living abroad may also
partially buy themselves out of military service by paying a sum of 5,112
Euros. However, in this case they still need to perform a one-month
military service. [1]

Turkish
citizens who live abroad and who possess dual nationality may get legally
exempt from service, on the condition that they lived abroad before the
age of 18 and that they performed military service in another country.
Exemption on this ground is only possible if the length of military
service that has been performed in another country is considered to be
comparable to the length of service in Turkey. [2]

Statistics

In
recent years, the share of conscripts in the armed forces has been reduced
by 17 per cent, mainly by reducing the length of military service. In
2003, the length of military service was reduced from 18 months. The
Turkish government plans to increase the number of professional soldiers
in the future, but it has no plans to abolish conscription. [3]

Conscientious
objection

Legal
basis

The
right to conscientious objection is not legally recognized.

Although
Article 24.1 of the 1982 Constitution guarantees the right to freedom of
conscience, the Constitution does not widen this to include the right to
conscientious objection to military service. In 1991, the Turkish
Constitutional Court explicitly ruled that the freedom of conscience
mentioned in Article 24 does not include the right to conscientious
objection to military service. [4]

According
to Article 72 of the Constitution: "Fatherland service is the right
and duty of every Turk. How this service in the armed forces or public
sector is carried out or is supposed to be carried out is prescribed by
law". Thus the Constitution does, at least in theory, allow
fatherland service to be a non-military service. However, Turkish
legislation does not provide for a substitute service or for an unarmed
military service within the armed forces.

The
Turkish government has never considered introducing legislation on
conscientious objection. A brochure published by the armed forces in 1999
in fact states: "In our laws there are no provisions on exemption
from military service for reasons of conscience. This is because of the
pressing need for security, caused by the strategic geographic position of
our country and the circumstances we find ourselves in. As long as the
factors threatening the internal and external security of Turkey do not
change, it is considered to be impossible to introduce the concept of
'conscientious objection' into our legislation". [5]

The
Turkish government has disassociated itself from the United Nations
Commission on Human Rights Resolution 1998/77, which affirms the right to
conscientious objection to military service as a legitimate exercise of
the freedom of thought, conscience and religion as laid down in Article 18
of the Universal Declaration of Human Rights and Article 19 of the
International Covenant on Civil and Political Rights. The Turkish
government does not recognise the right to conscientious objection to
military service as stated in these two international instruments. [6]

The
Council of Europe and the United Nations have regularly called upon Turkey
to legally recognise the right to conscientious objection. In March 2004,
the Parliamentary Assembly of the Council of Europe stated that:
"Despite Turkey's geostrategic position, the Assembly demands that
Turkey recognises the right to conscientious objection and introduce an
alternative civilian service". [7]

In
another development, the European Court of Human Rights has recently
admitted the case of Osman Murat Ülke, a CO who was sentenced to
imprisonment in 1996 (see: Practice).
His complaint to the European Court is mainly based on the claim that his
arrest and imprisonment for conscientious objection are a violation of
Article 9 of the European Convention, which guarantees the right to
freedom of thought and conscience. He made his complaint in 1997, which
was finally admitted in 2004. The admission of the case means that the
Court will judge if conscientious objection is part of the right to
freedom of thought and conscience as mentioned in the Convention. [8]

Practice

Since the 1990s, there are a small number of COs who publicly state that
they refuse to perform military service for non-religious, pacifist
reasons. The Turkish language actually makes a distinction between
conscientious objectors (vicdani retci) and draft evaders (asker kacagi).

The
first known Turkish CO was Osman Murat Ülke, a Turkish citizen who grew
up in Germany and returned to Turkey. In 1995 he publicly declared that he
was a conscientious objector and refused to perform military service.
Since then, dozens of others have followed. Between 1995 and 2004 approx.
40 men have openly declared themselves as conscientious objectors, mostly
by making a public statement or giving media interviews about their
reasons for refusing military service.

COs
may be punished under Article 63 of the Turkish Military Penal Code for
avoiding military service. COs who attract media attention or publish
articles about their refusal to perform military service may also be
punished to between six months' and two years' imprisonment under Article
318 of the Turkish Criminal Code for "alienating the people from the
armed forces". In 2004, a new Criminal Code was introduced (Law No
5237). Under the previous Criminal Code, "alienating people from the
armed forces" was punishable under Article 155 with a similar term of
imprisonment. [9]

In
the past, there have been several cases of COs who have been sentenced
under these two articles. The most well known case was Osman Murat Ülke,
who was arrested in October 1996 and during the following years spent a
total of 30 months in prison on several charges of disobeying orders. In
some other cases, COs have been acquitted of the charges by military
court.

In
recent years, it appears that the Turkish authorities have refrained from
harsh punishment of COs. This may have been caused by the fact that
previous trials of COs attracted considerable (international) attention
and the Turkish authorities may wish to avoid further attention for the
issue of conscientious objection.

However,
as long as there are no legal provisions for their right to conscientious
objection, the legal position of COs remains vulnerable and they may still
be subject to criminal prosecution.

In
2004 there were five known cases of COs. In May 2004, one CO was briefly
arrested after he publicly declared that he refused to perform military
service. The police arrested him briefly, but subsequently released him
again. So far, the police have not attempted to arrest him again. In
October 2004, four COs publicly declared their conscientious objection. [10]
In December 2004, one of them was arrested and held in military prison. [11]
His case is believed to be still pending.

Previously,
in 2003 one CO openly stated his conscientious objection. He was arrested
in January 2003, but was released after some days pending trial. The
military doctors gave him a three months' holiday to recover from what
they diagnosed as "a social disturbance of his personality". His
case is believed to be still pending. [12]

Apart
from the secular COs mentioned above, some members of religious
denominations who forbid their members to bear arms, in particular
Jehovah's Witnesses, have also refused to perform military service.
Members of Jehovah's Witnesses have regularly been sentenced to
imprisonment under Article 63 of the Penal Code for avoiding military
service. In recent years, Jehovah's Witnesses are reportedly regularly
allowed to perform unarmed military service within the armed forces. They
have complied with this. [13]

However,
in some cases, members of Jehovah's Witnesses have still been sentenced to
imprisonment. In 2003 and 2004, several Jehovah's Witnesses were
imprisoned for not taking the military oath and/or refusing to carry
weapons. They are usually sentenced to one month's imprisonment, after
which they are released pending trial. [14]

Draft
evasion

Draft
evasion and desertion are widespread. The exact number of draft evaders is
not known, but the number is estimated to be approx. 350,000.

Draft
evasion is prompted by the risk of being sent to serve in South Turkey and
poor conditions and human rights violations within the armed forces. There
have been regular reports of Kurdish conscripts in particular being
subjected to discriminatory treatment, especially when they are suspected
of having separatist sympathies. [15]

For
years, the Turkish armed forces have been involved in heavy fighting with
the PKK in South Eastern Turkey. In 1999 a ceasefire was agreed between
the Turkish government and the PKK, but the situation has remained tense
ever since. All conscripts may be sent to serve in South Eastern Turkey as
postings of conscripts are usually decided at random by computer. There is
a sizeable group of conscripts of Kurdish origin who refuse to perform
military service because they do not want to fight against their own
people. Many Kurdish draft evaders have, in fact, left Turkey and applied
for asylum abroad.

Draft
evasion and desertion are punishable under the Law on Military Service and
the Turkish Military Penal Code. Turkish law actually makes a distinction
between evasion of military registration, evasion of medical examination,
evasion of enlistment and desertion.

According
to Article 63 of the Penal Code, draft evasion is punishable (in
peacetime) by imprisonment of:

One
month for those who report themselves within seven days;

Three
months for those who are arrested within seven days;

Between
three months and one year for those who report themselves within three
months;

Between
four months and 18 months for those who are arrested within three
months;

Between
four months and two years for those who report themselves after three
months;

Between
six months and three years for those who are arrested after three
months;

Up
to ten years' imprisonment in the case of aggravating circumstances,
such as self-inflicted injuries, using false documents (Articles 79-81
of the Penal Code).

Desertion
is punishable under Articles 66-68 of the Penal Code with up to three
years' imprisonment. Deserters who have fled abroad may be sentenced to up
to five years' imprisonment, and up to ten years in case of aggravating
circumstances (Article 67).

Monitoring
of draft evasion and desertion is strict. [16]
The registration of conscripts is, in fact, one of the most effective
government registrations in Turkey. Draft evaders and deserters may be
arrested after routine checks such as traffic control. They are not able
to leave Turkey, as the military registration number is included on
identity documents. In addition, police and gendarma authorities are
responsible for finding draft evaders and deserters and may conduct house
searches and arrest them.

There
are no detailed figures available on the scale of prosecution of draft
evaders and deserters, but military courts are believed to deal with
approx. 60,000 cases per year that are connected to draft evasion. About
half of these cases reportedly deal with cases of conscripts going absent
for less than a week, mostly conscripts who do not report themselves back
in time after a period of leave.

Prison
sentences of less than one year's imprisonment for evasion of
registration/examination for enlistment or for desertion are generally
commuted into fines, which must be paid after the end of military service.
Sentences for draft evasion for periods longer than three months, when the
draft evader has not reported himself voluntarily, may not be commuted
into a fine. Suspended sentences may not be imposed for evasion of
registration/examination or enlistment or for desertion.

Those
who are convicted for draft evasion must still complete their term of
military service. Repeated offenders may thus be sentenced again. Prison
sentences for repeated offenders may not be commuted into fines.

Those
convicted to less than six months' imprisonment usually serve their prison
sentence in military prisons; those convicted to over six months'
imprisonment are imprisoned in regular prisons. After serving their prison
sentence, they still need to perform the remaining term of their military
service.

In
addition to the sentences outlined above, Turkish citizens can also have
their citizenship withdrawn if they live abroad and do not return to
perform military service within a certain time limit (Article 25(c) of the
Turkish Nationality Law No. 403). The names of individuals who have
forfeited their citizenship are published in the official Government
Gazette. Over the years, thousands of Turks have, in fact, forfeited their
citizenship. Those who have lost their citizenship in this way may apply
to get their citizenship restored, but their applications may only be
accepted if they complete their military service. [17]

In
December 2000, the Turkish government adopted an amnesty law. The amnesty
law applied to various crimes, including draft evasion. The amnesty law
applied to draft evaders and deserters who reported themselves to the
authorities before 23 April 1999. Although they were freed from criminal
prosecution under Articles 63-68 and 70-75 of the Penal Code, they still
remained liable for military service. Those who had not reported
themselves to the authorities by April 1999 were not granted amnesty. [18]

Notes

[1]
A temporary regulation has been in place which also allowed young men
living in Turkey to buy themselves out of service and do a one-month
military service. This regulation applied to men born before 1 January
1973 and applications needed to be made before 4 May 2000. 70,000 Turkish
men reportedly applied for this regulation.[2] Netherlands
Ministry of Foreign Affairs: Algemeen Ambtsbericht Turkije (country
report), November 2003.[3] UK Home Office
Immigration and Nationality Directorate: Country Report, October 2004.[4] Turkish
Constitutional Court 467/1991 and 422,343/1993 (Netherlands Ministry of
Foreign Affairs 2003).[5] Netherlands
Ministry of Foreign Affairs (2003).[6] United Nations
Commission on Human Rights, Civil and Political Rights, including the
question of conscientious objection to military service, Report of the
Secretary-General submitted pursuant to Commission resolution 1998/77,
56th session (E/CN.4/2000/55), 17 December 1999.[7] Parliamentary
Assembly of the Council of Europe, Honouring of obligations and
commitments by Turkey, Doc. 10111, 17 March 2004.[8] Council of
Europe, European Court of Human Rights, Second Section: Judgment as to the
admissibility of the application 39437/98 by Osman Murat Ülke against
Turkey, 1 June 2004. War Resisters' International: Conscientious Objection
Update, No.3/November 2004.[9] Hülya Ücpinar:
Was erwartet Kriegsdienstverweiger mit dem neuen Strafgesetzbuch, in:
Connection e.V., Rundbrief KDV im Krieg, January 2005.[10] War Resisters'
International: Conscientious Objection Update, No.3/November 2004.[11] War Resisters'
International: Conscientious objector Halil Savda arrested / fears of
torture, 16 December 2004.[12] War Resisters'
International: Conscientious objector Mehmet Bal released, 4 February
2003.[13] Spokesman of
the Jehovah's Witnesses, quoted in: Netherlands Ministry of Foreign
Affairs (2003).[14] US State
Department Bureau of Democracy, Human Rights and Labor: Country report on
human rights practices 2004, International Religious Freedom Report 2004,
International Religious Freedom Report 2003.[15] Different
sources make different assessments of the extent to which Kurdish
conscripts face discriminatory treatment within the armed forces. This
has, in fact, been the subject of debate in many asylum cases of
Turkish/Kurdish draft evaders and deserters in Western European countries.[16] Netherlands
Ministry of Foreign Affairs (2003).[17] UK Home Office
(2004).[18] Netherlands
Ministry of Foreign Affairs (2003). Schweizerische Flüchtlingshilfe: Türkei,
Zur Aktuellen Situation, SFH, Bern, June 2003.

Source:
Quaker Council for European Affairs: The Right to Conscientious Objection
in Europe: A Review of the Current Situation, 2005